B-182169, APR 10, 1975

B-182169: Apr 10, 1975

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WORKSHEETS AND OTHER INFORMATION SUBMITTED BY LOW BIDDER IN SUPPORT OF BID CORRECTION REQUEST NEED NOT BE DISCLOSED TO OTHER BIDDERS WHERE SUCH INFORMATION IS PROPRIETARY OR IS OTHERWISE EXEMPTED FROM PUBLIC DISCLOSURE UNDER EXISTING REGULATIONS. SUCH INFORMATION WILL BE CONSIDERED BY GAO IN ARRIVING AT DECISION ON PROTEST BY COMPETING BIDDER. 2. ADMINISTRATIVE DETERMINATION PERMITTING CORRECTION OF MISTAKE IN BID IS PROPER WHERE RECORD INDICATES THAT AGENCY REASONABLY DETERMINED THAT LOW BIDDER PRESENTED CLEAR AND CONVINCING EVIDENCE AS TO MISTAKE AND BIDDER'S WORKSHEETS INDICATED ERROR CONSISTED OF MATHEMATICAL MISAPPLICATION IN PRICING FORMULA WHICH. PROTEST THAT AGENCY IMPROPERLY ALLOWED BID CORRECTION BASED ON MISTAKE ALLEGED 25 DAYS AFTER BID OPENING IS DENIED AS BID MISTAKE MAY BE CLAIMED ANY TIME BEFORE AWARD.

B-182169, APR 10, 1975

1. WORKSHEETS AND OTHER INFORMATION SUBMITTED BY LOW BIDDER IN SUPPORT OF BID CORRECTION REQUEST NEED NOT BE DISCLOSED TO OTHER BIDDERS WHERE SUCH INFORMATION IS PROPRIETARY OR IS OTHERWISE EXEMPTED FROM PUBLIC DISCLOSURE UNDER EXISTING REGULATIONS. HOWEVER, SUCH INFORMATION WILL BE CONSIDERED BY GAO IN ARRIVING AT DECISION ON PROTEST BY COMPETING BIDDER. 2. ADMINISTRATIVE DETERMINATION PERMITTING CORRECTION OF MISTAKE IN BID IS PROPER WHERE RECORD INDICATES THAT AGENCY REASONABLY DETERMINED THAT LOW BIDDER PRESENTED CLEAR AND CONVINCING EVIDENCE AS TO MISTAKE AND BIDDER'S WORKSHEETS INDICATED ERROR CONSISTED OF MATHEMATICAL MISAPPLICATION IN PRICING FORMULA WHICH, WHEN CORRECTED AND RECALCULATED, REFLECT INTENDED BID. 3. PROTEST THAT AGENCY IMPROPERLY ALLOWED BID CORRECTION BASED ON MISTAKE ALLEGED 25 DAYS AFTER BID OPENING IS DENIED AS BID MISTAKE MAY BE CLAIMED ANY TIME BEFORE AWARD. ALSO, AGENCY NOT REQUIRED TO NOTIFY OTHER BIDDERS OF ALLOWANCE OF CORRECTION.

RCI MICROFILM:

RCI MICROFILM PROTESTS AGAINST THE DECISION BY THE NAVAL SUPPLY SYSTEMS COMMAND TO PERMIT ORTHO MICROFILM, INCORPORATED, TO CORRECT A MISTAKE IN ITS BID, AND THE SUBSEQUENT AWARD TO ORTHO. FOR REASONS DISCUSSED BELOW, THE PROTEST IS DENIED.

INVITATION FOR BIDS (IFB) NO. N00244-74-B-0500 WAS ISSUED ON MAY 8, 1974, BY THE NAVAL SUPPLY CENTER, SAN DIEGO, CALIFORNIA, FOR THE PROCUREMENT OF SIX ITEMS OF MICROFILM SERVICES FOR THE NAVAL PUBLICATIONS AND PRINTING SERVICE OFFICE, FOR THE PERIOD AUGUST 1, 1974, THROUGH JUNE 30, 1975. THE INVITATION CONTEMPLATED AN AWARD OF ALL SIX ITEMS TO A SINGLE BIDDER. JUNE 4, 1974, BID OPENING DAY, EIGHT RESPONSIVE BIDS WERE SUBMITTED. THE BIDDERS AND BID PRICE EXTENSIONS WERE AS FOLLOWS:

BIDDER BID PRICE

ORTHO MICROFILM, INC. $ 157,898.52

RCI MICROFILM 306,974.80

ORCO MICROFILMING SERVICE 356,044.02

DELTA MICROFILM CO. 388,751.00

MICRO PUBLICATION SYSTEMS 408,011.50

WESTERN MICROGRAPHICS 461,120.92

ARCATA MICROFILM CORP. 475,626.00

COMPUTER MICROGRAPHICS, INC. 1,023,706.00

THE RECORD INDICATES THAT ON JUNE 5, 1974, ORTHO AND THE HIGHEST BIDDER WERE REQUESTED TO VERIFY THEIR BIDS. ORTHO'S VICE PRESIDENT, MR. L.R. CURTIS, TELEPHONICALLY RESPONDED ON THAT DATE THAT ORTHO HAD NOT MADE AN ERROR IN ITS BID. HOWEVER, DURING A SUBSEQUENT PREAWARD SURVEY OF ORTHO, AN ORTHO REPRESENTATIVE ADVISED MEMBERS OF THE SURVEY TEAM THAT IT HAD DISCOVERED A MISTAKE IN ITS BID AND WAS PREPARING TO REQUEST CORRECTION. UPON RECEIPT OF THIS INFORMATION FROM THE PREAWARD SURVEY TEAM ON JUNE 26, 1974, THE CONTRACTING OFFICER CONTACTED MR. CURTIS WHO CONFIRMED THAT ORTHO WOULD CLAIM A MISTAKE IN BID AND REQUEST CORRECTION THEREOF. ACCORDINGLY, THE CONTRACTING OFFICER ADVISED MR. CURTIS TO SUBMIT THE NECESSARY MATERIALS, INCLUDING ORTHO'S WORKSHEETS, TO SUBSTANTIATE THE ALLEGED MISTAKE AND INTENDED BID. BY LETTER OF JUNE 29, 1974, ORTHO SUBMITTED AN EXPLANATION OF THE NATURE OF THE CLAIMED ERROR, THE INTENDED BID FIGURES, AND A REQUEST FOR CORRECTION TO $239,144.50. ENCLOSED WITH THE LETTER WERE SEVEN CERTIFIED WORKSHEETS RELATING TO ORTHO'S BID PREPARATION. BY LETTER OF JULY 3, 1974, ORTHO SUBMITTED INFORMATION SUPPORTING ITS CLAIM OF THE INTENDED BID PRICES.

THE MISTAKE CLAIMED BY ORTHO WAS A MISCALCULATION OF ITS OVERHEAD RATE FACTOR AT 1.05826 RATHER THAN 1.5826. IN ORDER TO PROPERLY ALLOCATE ITS OVERHEAD COSTS EQUALLY AMONG THE UNITS TO BE PRODUCED, ORTHO REPORTEDLY CALCULATED ITS OVERHEAD COSTS AS A FACTOR OF DIRECT LABOR AND MATERIAL, AND THEN APPLIED THIS FACTOR TO DIRECT LABOR AND MATERIALS TO DETERMINE ITS COSTS PER UNIT AFTER MARKUP. ORTHO CLAIMED THAT ITS OVERHEAD RATE WAS, AS A RESULT OF A MATHEMATICAL ERROR, CALCULATED TOO LOW, WHICH RESULTED IN ITS ENTIRE BID ON THE SIX ITEMS BEING CONSIDERABLY UNDERSTATED. AFTER EXAMINATION OF THE MATERIAL SUBMITTED BY ORTHO TO INDICATE THE ERROR, THE MANNER IN WHICH THE ERROR OCCURRED, AND THE AMOUNT OF THE INTENDED BID PRICE, THE NAVY DETERMINED ON JULY 31, 1974, THAT CORRECTION OF THE BID TO THE CLAIMED INTENDED BID PRICE WAS PROPER PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION SEC. 2-406.3(B) (1974 ED.). ACCORDINGLY, ON AUGUST 1, 1974, AWARD WAS MADE TO ORTHO FOR ITS CORRECTED BID PRICE OF $239,144.50. AWARDS WERE ALSO MADE TO RCI AND ORCO MICROFILMING SERVICE AS THE RESPECTIVE SECONDARY AND TERTIARY CONTRACTORS, AND NOTICE OF ALL THREE AWARDS WAS FORWARDED TO THE RESPECTIVE FIRMS BY MAIL ON AUGUST 1, 1974.

DURING THE PERIOD OF AUGUST 1, 1974, WHEN THE NAVY WAS EVALUATING ORTHO'S CORRECTION REQUEST, RCI PROTESTED TO THE NAVY BY LETTER DATED JULY 24, 1974, AGAINST THE ALLOWANCE OF ANY PRICE MODIFICATION TO ORTHO. A COPY OF THE LETTER WAS RECEIVED BY THE CONTRACTING OFFICER ON AUGUST 2, 1974, AND THE ORIGINAL WAS APPARENTLY SENT TO THE NAVY IN WASHINGTON, D.C. THE LETTER WAS FORWARDED TO THE PURCHASE DIVISION IN CALIFORNIA ON AUGUST 5, 1974, AND ON AUGUST 7, 1974, THE PURCHASE DIVISION FORWARDED ALL PERTINENT INFORMATION TO THE NAVAL SUPPLY SYSTEMS COMMAND FOR RESPONSE. AS IT HAD NOT RECEIVED A RESPONSE TO ITS PROTEST BY SEPTEMBER 4, 1974, RCI FILED THE INSTANT PROTEST WITH THIS OFFICE ON SEPTEMBER 5, 1974. BY LETTER OF SEPTEMBER 13, 1974, THE NAVY INFORMED RCI THAT ITS PROTEST WAS WITHOUT MERIT AND ACCORDINGLY DENIED.

AS THE BASIS FOR ITS PROTEST, RCI QUESTIONS WHETHER ORTHO SHOULD HAVE BEEN PERMITTED TO CORRECT ITS BID ON THE BASIS OF THE EVIDENCE PRESENTED. RCI CONTENDS THAT ORTHO'S ORIGINAL BID PRICE MAY WELL HAVE BEEN ITS INTENDED BID PRICE AS IT APPEARS THAT ORTHO INTENDED TO USE MARGINAL PRICING AND THUS UTILIZED A VERY LOW OVERHEAD FACTOR IN ITS CALCULATIONS. RCI BELIEVES THAT ORTHO SHOULD HAVE BEEN ABLE TO ESTIMATE ITS BID PRICE FROM ITS OTHER NAVY CONTRACT WORK (A BLANKET PURCHASE ORDER), AND THAT ORTHO'S ORIGINAL BID SHOULD THEREFORE HAVE BEEN MUCH CLOSER TO ITS AWARD PRICE THAN INDICATED ON THE RECORD. IT IS RCI'S BELIEF THAT THE ACTUAL REASON FOR ORTHO'S CLAIM OF MISTAKE AND REQUEST FOR CORRECTION WAS THAT ORTHO'S COST OF MATERIALS WAS INCREASED, REQUIRING A HIGHER CONTRACT PRICE. IN THIS REGARD, RCI NOTES THAT THE NAVY'S FIRST REQUEST FOR BID VERIFICATION, ON JUNE 5, 1974, BROUGHT THE RESPONSE FROM ORTHO THAT IT HAD NOT MADE A MISTAKE IN ITS BID. AS A RESULT, RCI BELIEVES THAT CORRECTION OF ORTHO'S BID SHOULD NOT HAVE BEEN ALLOWED, THAT THE RESULTING CORRECTION WAS IN VIOLATION OF ASPR SEC. 2-406.3 (1974 ED.), AND THAT THE PRIMARY AWARD TO ORTHO SHOULD BE RESCINDED AND MADE TO RCI.

RCI ALSO RAISES SEVERAL QUESTIONS RELATING TO ALLEGED RESTRICTIONS ON ITS ABILITY TO PROPERLY PROTEST THE NAVY'S ACTIONS. INITIALLY, RCI PROTESTS AGAINST THE NAVY'S ACTIONS IN ACCEPTING ORTHO'S MISTAKE CLAIM 25 DAYS AFTER BID OPENING, IN NOT NOTIFYING RCI THAT CORRECTION OF THE ORTHO BID WAS ALLOWED AND THE REASON FOR CORRECTION, AND IN DELAYING A SUBSTANTIVE RESPONSE TO THE RCI PROTEST UNTIL SEPTEMBER 13, 1974. RCI CONSIDERS THESE ACTS TO HAVE CONSTITUTED AN UNREASONABLE DELAY TO ITS PREJUDICE, AND QUESTIONS WHETHER THE NAVY TOOK THESE ACTIONS SO AS TO PROTECT A DE FACTO SOLE SOURCE CONTRACTOR. ALSO, RCI PROTESTS AGAINST THE ACT OF THE NAVY AND ORTHO IN NOT PERMITTING RCI TO EXAMINE THE ALLEGEDLY PROPRIETARY ORTHO WORKSHEETS ON WHICH ORTHO'S CLAIM OF MISTAKE AND INTENDED BID PRICE ARE BASED. AS A RESULT OF THIS REFUSAL, RCI CONTENDS THAT THIS OFFICE SHOULD EXCLUDE AS EVIDENCE THE RCI WORKSHEETS AND RELATED DOCUMENTATION IN ARRIVING AT OUR DECISION ON ITS PROTEST. IT ARGUES THAT THE ORTHO WORKSHEETS AND RELATED DOCUMENTS, WHILE PERHAPS ORIGINALLY PROPRIETARY, BECAME PUBLIC RECORDS WHEN ORTHO VOLUNTARILY SUBMITTED THEM TO THE NAVY IN SUPPORT OF THE ORTHO MISTAKE IN BID CLAIM. ALTERNATIVELY, RCI ARGUES THAT THE ORTHO WORKSHEETS ARE NOT PROPERLY AUTHENTICATED OR CERTIFIED, AND THUS CANNOT BE CONSIDERED PROBATIVE EVIDENCE TO SUPPORT EITHER THE ALLEGATION OF ERROR OR THE INTENDED BID PRICE. RCI BASES THIS ARGUMENT ON THE FACT THAT THE CERTIFICATE OF AUTHENTICITY ATTACHED TO ORTHO'S JUNE 29, 1974, LETTER IS UNDATED, AND DOES NOT MENTION THE ORTHO BID WORKSHEETS BY DATE, PRICE, OR OTHER IDENTIFICATION.

IT IS THE POSITION OF THE NAVY THAT ORTHO HAS SUBMITTED CLEAR AND CONVINCING EVIDENCE OF A BID ERROR, THE MANNER IN WHICH THE ERROR OCCURRED, AND THE AMOUNT OF THE INTENDED BID PRICE. AS SUCH, IT BELIEVES CORRECTION WAS PROPER. THE NAVY, IN ITS REVIEW OF THE ORTHO WORKSHEETS AND RELATED DOCUMENTS, CONCLUDED THAT ORTHO'S MATHEMATICAL ERROR DID IN FACT OCCUR. ALSO, THE NAVY POINTS OUT THAT IT WAS ABLE TO CONFIRM AND CALCULATE THE INTENDED BID PRICE BY CORRECTLY CALCULATING THE OVERHEAD FACTOR, AND THEN RECOMPUTING THE EXTENDED AGGREGATE PRICES FOR ALL SIX BID ITEMS. WHILE THE NAVY NOTES THAT ORTHO DID PROVIDE SIMILAR SERVICES UNDER BLANKET PURCHASE ORDER N00244-75-A-0490 (PURCHASES LESS THAN $250), THE NAVY DOES NOT CONSIDER THIS FACT AS RELEVANT TO ORTHO'S CLAIM OF MISTAKE IN THIS CASE. WITH RESPECT TO RCI'S ALLEGATION THAT DELAYS BY THE NAVY IN INFORMING BIDDERS OF THE MISTAKE AND THE REASONS FOR ALLOWING CORRECTION HAVE PREJUDICED RCI, WE NOTE THAT IN A LETTER DATED NOVEMBER 22, 1974, FROM THE ASSISTANT SECRETARY OF THE NAVY (INSTALLATIONS AND LOGISTICS) TO COUNSEL FOR RCI, THE NAVY INDICATED THAT THE DELAY IN RESPONDING TO RCI'S PROTEST AROSE "FROM THE TIME TAKEN TO GIVE THE CLAIM CAREFUL CONSIDERATION AND TO BE SURE THAT THE CORRECT CONCLUSION WAS REACHED." REGARDING ORTHO'S WORKSHEETS AND RELATED DOCUMENTS, THE NAVY HAS PRESENTED THEM FOR OUR REVIEW AND DEFENDS ITS ACTION IN RESTRICTING THEIR DISCLOSURE ON THE BASES THAT ORTHO CONSIDERS THEM PROPRIETARY AND HAS REFUSED PERMISSION TO ALLOW THE WORKSHEETS AND DOCUMENTS TO BE MADE PUBLIC, AND THAT SUCH RESTRICTION IS BASED ON SECTION VIII.B.4(B) OF APPENDIX L OF ASPR (1974 ED.), WHICH SETS FORTH AN EXEMPTION FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT, 5 U.S.C. SEC. 552 (1970).

IN CONSIDERING THE MERITS OF THIS PROTEST, COUNSEL FOR RCI ARGUES THAT WE SHOULD EXCLUDE FROM OUR CONSIDERATION THE ORTHO WORKSHEETS AND RELATED DOCUMENTS BECAUSE THEY WERE "PUBLIC" DOCUMENTS, YET NOT FURNISHED TO RCI FOR EXAMINATION. WE HAVE TAKEN THE POSITION THAT RESTRICTED DOCUMENTS NOT FURNISHED TO A PROTESTER CAN PROPERLY BE CONSIDERED BY THIS OFFICE IN DECIDING A BID PROTEST. MATTER OF TECHPLAN CORPORATION, B-180795, SEPTEMBER 16, 1974; MATTER OF UNICARE HEALTH SERVICES, INC., B-180262, B- 182305, APRIL 5, 1974. IN THIS REGARD, WE HAVE DECIDED THE MERITS OF A PROTEST AGAINST A BID CORRECTION EVEN THOUGH THE PROTESTER WAS NOT GIVEN ACCESS TO THE WORKSHEETS UPON WHICH ALLOWANCE OF THE CORRECTION WAS BASED. B-174608, MAY 9, 1972. WITH RESPECT TO THE ALLEGED "PUBLIC" NATURE OF ORTHO'S WORKSHEETS AND RELATED DOCUMENTS, WE RECOGNIZE THAT BIDS ARE REQUIRED TO BE PUBLICLY OPENED, 10 U.S.C. SEC. 2305(C) (1970), AND THAT A PUBLIC OPENING HAS BEEN INTERPRETED TO MEAN THAT THE BID MUST PUBLICLY DISCLOSE TO ALL COMPETING BIDDERS THE ESSENTIAL NATURE AND TYPE OF THE PRODUCTS OFFERED AND THOSE ELEMENTS OF THE BID WHICH RELATE TO PRICE, QUANTITY, AND DELIVERY TERMS. 53 COMP. GEN. 24, 25 (1973). IN OUR OPINION, HOWEVER, INFORMATION SUBMITTED BY A BIDDER AFTER BID OPENING IN SUPPORT OF A BID CORRECTION CLAIM IS NOT A PART OF THE BID ITSELF. FURTHERMORE, A BIDDER IS NOT REQUIRED TO PUBLICLY DISCLOSE PROPRIETARY OR PRIVILEGED INFORMATION SUPPORTING ITS BID PRICE AND WE SEE NO REASON WHY SUCH INFORMATION MUST BE PUBLICLY DISCLOSED WHEN BID CORRECTION IS REQUESTED OR PERMITTED. WHILE ASPR SEC. 2-406 (1974 ED.) DOES NOT EXPRESSLY COVER THIS ISSUE, ASPR SEC. 2-407.8(A)(4) (1974 ED.), WHICH PERTAINS TO PROTESTS AGAINST AWARD, PROVIDES THAT A COPY OF THE AGENCY REPORT FURNISHED THE PROTESTER SHALL NOT CONTAIN CLASSIFIED OR PRIVILEGED MATERIAL. FURTHERMORE, IT APPEARS THAT SUCH DOCUMENTS ARE PROTECTED FROM DISCLOSURE UNDER ASPR SEC. 1-329.3(C)(4) AND APPENDIX L (1974 ED.) PRIVILEGED FINANCIAL INFORMATION. SINCE THE AGENCY HAS DETERMINED THAT THESE DOCUMENTS SHOULD BE PROTECTED FROM DISCLOSURE, WE SHALL COMPLY WITH HE AGENCY'S REQUEST NOT TO DISCLOSE THEM. MATTER OF FRONTIER BROADCASTING CO. ET AL., 53 COMP. GEN. 678, 683 (1974). THEREFORE, WE MUST REJECT RCI'S ARGUMENT THAT THESE ITEMS OF EVIDENCE SHOULD BE EXCLUDED AS RELEVANT MATERIAL IN THE DETERMINATION OF THIS PROTEST.

WE NEXT CONSIDER THE PROPRIETY OF THE NAVY'S ACTION IN PERMITTING ORTHO TO CORRECT ITS BID FROM $157,898.52 TO $239,144.50. OUR OFFICE HAS HELD THAT TO PERMIT CORRECTION OF AN ERROR IN BID PRIOR TO AWARD, A BIDDER MUST SUBMIT CLEAR AND CONVINCING EVIDENCE THAT AN ERROR HAS BEEN MADE, THE MANNER IN WHICH THE ERROR OCCURRED, AND THE INTENDED BID PRICE. MATTER OF FORTEC CONSTRUCTORS, B-1792904, MAY 24, 1974; 49 COMP. GEN. 480 (1970). THE SAME BASIC REQUIREMENTS FOR THE CORRECTION OF A BID ARE FOUND IN ASPR SEC. 2-406.3(A)(3) (1974 ED.), WHICH PROVIDES:

"WHERE THE BIDDER REQUESTS PERMISSION TO CORRECT A MISTAKE IN HIS BID AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED, A DETERMINATION PERMITTING THE BIDDER TO CORRECT THE MISTAKE MAY BE MADE ***."

AS THE AUTHORITY TO CORRECT MISTAKES ALLEGED AFTER BID OPENING BUT PRIOR TO AWARD IS VESTED IN THE PROCURING AGENCY AND THE WEIGHT TO BE GIVEN THE EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE IS A QUESTION OF FACT TO BE CONSIDERED BY THE ADMINISTRATIVELY DESIGNATED EVALUATOR OF THE EVIDENCE, GAO WILL NOT QUESTION A FACTUAL DETERMINATION PERMITTING CORRECTION UNLESS THERE IS NO REASONABLE BASIS FOR SUCH DETERMINATION. MATTER OF ACE- FEDERAL REPORTERS, INC., B-181451, NOVEMBER 6, 1974; 53 COMP. GEN. 232, 235 (1973).

AFTER A REVIEW OF THE MATERIAL SUBMITTED TO THE NAVY BY ORTHO, WE FIND NO BASIS FOR QUESTIONING THE NAVY'S DECISION TO PERMIT ORTHO TO CORRECT ITS BID. EACH OF THE SEVEN WORKSHEETS SUBMITTED WAS CERTIFIED BY MR. CURTIS AS AUTHENTIC, AND AN ANALYSIS OF WORKSHEET THREE INDICATES THAT ORTHO CALCULATED TOTAL LABOR TO BE $27,649, TOTAL MATERIAL TO BE $97,095, AND OVERHEAD TO BE $72,682, FOR A TOTAL OF $197,426. HOWEVER, WHEN DIVIDING THE TOTAL OF LABOR, MATERIAL AND OVERHEAD BY TOTAL LABOR AND MATERIAL COST (TO ARRIVE AT THE OVERHEAD FACTOR PER UNIT), IT REASONABLY APPEARS THAT ORTHO MADE A MATHEMATICAL ERROR BY ARRIVING AT THE RATE OF 1.05826 INSTEAD OF THE CORRECT FACTOR OF 1.5826. AFTER DISCOVERY OF THIS ERROR, MATHEMATICAL RECALCULATION OF THE PRICES OF EACH OF THE SIX IFB ITEMS BY MERELY SUBSTITUTING THE FACTOR OF 1.5826 FOR 1.05826, AND LEAVING ALL OTHER COSTS CONSTANT, INDICATED THAT THE BID OF ORTHO SHOULD HAVE BEEN IN THE AMOUNT OF $245,219.10 (WHICH WAS VOLUNTARILY REDUCED TO $239,143.70 FOR REASONS UNRELATED TO THE MISTAKE). FROM OUR EXAMINATION OF THE EVIDENCE SUBMITTED BY ORTHO AND ITS MANNER OF BID CALCULATION, WHICH LENDS ITSELF TO A REASONED REVIEW, WE BELIEVE THE NAVY REASONABLY CONCLUDED THAT ORTHO COMMITTED AN ERROR IN DETERMINING THE OVERHEAD FACTOR IN ISSUE, AND THAT ORTHO'S INTENDED BID PRICE WAS TO BE BASED ON THE APPLICATION OF AN OVERHEAD FACTOR OF 1.5826 RATHER THAN 1.05826.

WHILE RCI QUESTIONS THE NAVY'S ACTION IN PERMITTING ORTHO TO CORRECT ITS BID ON THE BASIS OF A CLAIM OF BID MISTAKE ALLEGED 25 DAYS AFTER BID OPENING, ASPR SEC. 2-406.3(A) (1974 ED.) PERMITS BID CORRECTION ANYTIME PRIOR TO AWARD. SINCE THE ALLEGATION OF ERROR FIRST SURFACED DURING THE PREAWARD SURVEY ON JUNE 26, 1974, WE DO NOT CONSIDER THE REQUEST FOR CORRECTION 25 DAYS AFTER BID OPENING AS ABNORMAL OR PREJUDICIAL. FINALLY, ALTHOUGH RCI ALSO PROTESTS AGAINST THE NAVY'S FAILURE TO NOTIFY IT THAT CORRECTION WAS PERMITTED, THERE IS NO SUCH REQUIREMENT IN ASPR SEC. 2-406 (1974 ED.).

ACCORDINGLY, IN VIEW OF THE ABOVE, THE PROTEST IS DENIED.